I’m talking about the cases we all are familiar.
<LEO on a fishing expedation>May I search your car?
<Driver>I do not consent to a search
<LEO>Sniff, Sniff I smell alcohol.
There is no alcohol, driver has not been drinking and no alcohol is found.
Can the cop use anything found like bag with oregano, unlicensed gun, collection of eyeballs, etc. against you? If not, then we really have no effective 4th Amendments rights re: our cars?
If your point is that an officer will lie to create probable cause for a search, then why not:
<LEO on a fishing expedation>May I search your car?
<Driver>I do not consent to a search
<LEO>Don’t care. Searching anyway.
(Later in court)
<LEO>…and then he said, “Look all you like officer; I have nothing to hide.”
They can try. Your lawyer and an awake judge will make sure it doesn’t get admitted in court.
The thing is, once a cop or a department gets a reputation of faking probable cause, the courts usually just stop listening to them. Defense attorneys can have a field-day against cops who have been found to have faked evidence or PC before.
This doesn’t address the basic question in the OP. Let’s suppose that the conversation is recorded via a video cam. To what extent can an officer use evidence found from a search based on a suspicion that turns out not to be correct?
Depends on several factors. Where the evidence was found is one. Suspicion of alcohol doesn’t mean the officer can search the trunk, for example, because the driver didn’t have access to it while driving. So a bag of eyeballs found there would be inadmissible in court.
<LEO on a fishing expedition>May I search your car?
<Driver wearing “420” t-shirt>I do not consent to a search
<LEO>Sniff, Sniff I smell a green leafy substance.
So what happens after the cop then finds 200 oxycodone pills in the center console?
You hope your lawyer is really good.
Maybe in some strict legal sense, but the cop’s just going to say “I noticed him looking nervously over his shoulder, and seeing nothing in the back seat, I suspected there was something in the trunk.”
I am not an attorney but I think that the “Fruit of the Poisoned Tree” doctrine would be invoked in such a situation:
Having litigated many search and seizure issues over the years, it’s been my experience most cops don’t lie, even when it would be easy enough for them to do so. As noted above, “he gave me consent” or “I smelled marijuana” are easy lies. I got the impression 1)people are usually honest unless they have a good reason to lie, 2) cops don’t really have a strong incentive to get any particular motorist in trouble (there are plenty of others to go get), and 3) they’re professionals who aren’t going to risk their careers to conduct an illegal search (legal searches aren’t that difficult to do).
My second observation: Some cops do lie, and usually get away with it.
Defense attorney: “And what did that have to do with the suspected alcohol my client has been accused of drinking? Motion to Suppress.”
I still think the court will enquire as to those squishy eyeballs anyway.
So, in other words, your fourth amendment ‘rights’ only have any meaning if a police officer doesn’t feel like violating them in a way he will almost certainly get away with. So the OP’s point - that these ‘rights’ are somewhat weakly protected in practice, especially in the case of cars - is corroborated by your personal experience.
I guess. More body cams will help. But as I said, instances where even my client would claim “the cops are lying” were pretty rare. How can a court enforce “rights” when the facts presented don’t establish a violation of those rights?
The same concept could apply across the board. if i sue you for hitting me in the gut, and it’s just your word against mine, perhaps I’ll win and perhaps I won’t. But there a chance a jury will believe my lies and you’ll just have to live with that and pay the judgment.
I’m not sure what more we can do, it’s not like you can run a system where all evidence would be suppressed every time a defendant claims an unlawful search. Recruiting good officers, training them well, and having zero tolerance for perjury would be helpful. As would eliminating the profit motive (civil forfeiture)
There’s a biggie right there. (At least in some jurisdictions.)
I thought this was going to be a thread about protections from Low Earth orbit. And my answer to that is a tarp.
This very thing happened to my college boyfriend–several decades ago, so no body or dash cams. He and a buddy were stopped, the cops asked to search their car, they said no, cops said they smelled alcohol on their breath, searched the car & found marijuana. Both were arrested & lawyered up. The case against them was ultimately dismissed for illegal search & seizure. But it did cost them a bit in attorney fees.
QFT. Almost every cop I work with/against will gladly shake my hand and move onto the next case if I can beat him. He is not about winning at all costs. The few that are tend to quickly do something stupid like rough up a suspect and get fired.
I saw a video instructing people how to deny a police officer from searching your car. It seems some cops like to employ this One Simple Trick to get permission. To wit:
LEO: You don’t mind if I search your car? You don’t have anything illegal in here do you?
Driver: No. Wait. What?
LEO initiates search.
Later in court, cop to judge: "I asked if he didn’t mind me searching his car, he said “No”.
Cop and judge then exchange winks.
There’s the sugar bowl doctrine, which basically limits a search to areas that could be reasonably expected to contain the objects you’re searching for. And every search is supposed to have an objective (e.g. ‘evidence of consuming alcohol while driving’, ‘stolen items x, y, and z’, ‘evidence of involvement with a specific criminal incident’, etc.)
Also, there’s the ‘fruit of a poisoned tree’ doctrine where all the evidence stemming from an unlawful discovery becomes inadmissible. For example, the cops search your home and discover you own a storage unit and then search that storage unit and discover boxes of drugs. If that initial search of your home is declared unlawful, everything they discovered in the storage unit is also inadmissible.